How to Contest a Loved One’s Will

Introduction to How to Contest a Loved One’s Will

Your loved one has just passed away, and his or her will is ready to be admitted to probate in the next few weeks. The executor of the decedent’s will is a distant family member: Your loved one believed that having someone who was a bit more removed from the immediate family would be a more rational choice and would not be incapacitated by grief following his or her death. Before his or her death, your loved one informed you of how he or she was planning on distributing his or her estate. You and other immediate family members gather to hear the will and are shocked when it is read aloud. The terms of the will are not what you believed they would be. In fact, not only are you and the other immediate family members left out of the will, the executor and his family members stand to inherit the greatest share of the decedent’s estate.

Your situation may not be quite as dramatic as this hypothetical, but when your loved one’s will does not appear to be in accord with the estate plan he or she described to you, you may wonder about challenging the admissibility of the will into probate through a will contest suit. Successfully contesting a will is not an easy task and requires a considerable amount of investigation on your part.

Step One: Obtain a Copy of the Will

In reviewing the will, you are looking for any obvious signs of forgery or noncompliance with the legal requirements for wills in your state. Look at the signature page to see if any of the signatures appear to be forged. Are there witnesses to the will and have they signed the will as required by your state’s laws? Does the date of the will appear to be later than the date of your loved one’s last executed will? If so, does this will contain language specifically overriding the previous will? If the will is an obvious forgery, this may help avoid a will contest altogether if you are able to simply confront the executor or person who is seeking to have the will admitted to probate.

Step Two: Contact the Witnesses

If the will appears to be valid on its face, you should next contact the witnesses who signed the will along with the decedent. Speak to them about the decedent’s appearance and mannerisms at the time the suspect will was signed. If there are any indications the decedent lacked capacity at the time the will was signed, you may have grounds to challenge the admissibility of the will. If the decedent did not know who his or her heirs were, did not know the size or scope of his or her estate, or was defrauded or unduly pressured into signing the will, he or she may not have had the requisite capacity to create a will. For additional information see the article on 3 ways to contest a will.

Step Three: Determine if There Are Other Grounds to Challenge the Will

If the will is not a forgery, appears to comply with statutory requirements, and it appears the decedent had the capacity to create the will, you likely have very few remaining grounds upon which to raise a legal challenge. If you are an heir and entitled to a share of the decedent’s estate regardless of the will, however, you may have a viable argument to raise in court. For example, in some states the testator cannot disinherit his or her spouse. A will provision that purports to do so can be overlooked upon the request of the surviving spouse.

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